In a pair of 5-4 decisions, the court delivers two legal blows against the traditional definition of marriage.

JOAN FRAWLEY DESMOND

WASHINGTON — In a 5-4 decision on June 26, the U.S. Supreme Court struck down part of the federal Defense of Marriage Act (DOMA), ruling that it denied legally married same-sex couples equal protection under the law.

In a separate 5-4 decision on the Proposition 8 case, Hollingsworth v. Perry, the high court found that the citizens’ group that appealed a lower-court ruling striking down the 2008 California voter initiative that defined marriage as between one man and one woman did not have standing to bring the case to the Ninth Circuit. The justices directed that the case be remanded to the San Francisco district court that ruled Proposition 8 unconstitutional.

The rulings were not a surprise to constitutional experts who had followed the justices’ questions and comments during the March 2013 oral arguments for the two landmark marriage cases.

But the news prompted dismay from Catholic leaders and other advocates for traditional marriage.

“Today is a tragic day for marriage and our nation. The Supreme Court has dealt a profound injustice to the American people by striking down in part the federal Defense of Marriage Act. The court got it wrong. The federal government ought to respect the truth that marriage is the union of one man and one woman, even where states fail to do so," read a statement from the U.S. Conference of Catholic Bishops.

Experts on both sides noted that, while additional litigation was expected, the DOMA decision did not strike down as unconstitutional state bans on same-sex “marriage.”

Meanwhile, the Proposition 8 ruling appears to leave in place the initial district-court decision, which found the state voter initiative unconstitutional.

Same-sex couples in California will likely be able to marry soon, but the decision does not affect other state marriage laws.

“A narrow majority of the justices voted to strike down Section 3 of the federal Defense of Marriage Act,” Richard Garnett, a law professor and associate dean of the University of Notre Dame Law School, told the Register.

“Similarly, a different narrow majority’s conclusion that the supporters of California’s Proposition 8 lack standing to appeal the trial court’s decision was widely expected.”

Yet Garnett said the two rulings would have no immediate impact on state laws that ban same-sex “marriage.”

“At least for now, the political process and public deliberation on the marriage question will continue,” he said, while noting that the DOMA decision will “encourage additional challenges to most states’ definitions of ‘marriage,’ and at least one of those challenges will return to the Supreme Court in the near future.”

Writing for the majority on the DOMA decision, Justice Anthony Kennedy said the federal law “violates basic due process and equal-protection principles applicable to the federal government. The Constitution’s guarantee of equality ‘must at the very least mean that a bare congressional desire to harm a politically unpopular group cannot’ justify disparate treatment of that group.”

Scalia’s Dissent

“It takes real cheek for today’s majority to assure us, as it is going out the door, that a constitutional requirement to give formal recognition to same-sex marriage is not at issue here — when what has preceded that assurance is a lecture on how superior the majority’s moral judgment in favor of same-sex marriage is to the Congress’ hateful moral judgment against it,” wrote Justice Antonin Scalia in a scathing dissent from the majority opinion.

“I promise you this: The only thing that will ‘confine’ the court’s holding is its sense of what it can get away with.”

In the wake of the two marriage rulings, Archbishop William Lori of Baltimore expressed dismay that the high court had not resisted an increasingly powerful legal and cultural current to redefine a central social institution.

The two rulings, said Archbishop Lori, “are the latest in a troubling trend of decisions by lawmakers, judges and some voters which ignores the fundamental truth about marriage: It is the most valued, most important social unit in our society and, as such, is deserving of the protection and special recognition societies have afforded it throughout human history."

“Today’s decisions will undoubtedly have far-reaching consequences, most especially for children, and are another serious blow to the institution of marriage,” said Archbishop Lori in a June 26 statement.

The U.S. bishops have repeatedly warned that any change in the nation’s marriage laws would not only weaken respect for marriage, but also threaten the free exercise of Catholic institutions that uphold Church teaching on marriage as a union of one man and one woman.

Military Concerns

Archbishop Timothy Broglio of the Archdiocese for the Military Services, raised these concerns in a June 26 op-ed in The Washington Post that affirmed the equal dignity of all persons, but rejected the notion that marriage could be redefined. “Marriage remains what it has always been, regardless of what any government might say,” stated Archbishop Broglio, who acknowledged the disorienting effect of military personnel dealing with a patchwork of state marriage laws. “It is unseemly that the uniformity of the federal system can now be upset by state policies in this area of life and law.”

While Archbishop Broglio has repeatedly expressed concern that a redefinition of marriage would threaten the religious liberty of military chaplains, he insisted that the “Constitution guarantees that no endorsed minister will ever be compelled to perform a religious ceremony contrary to the dictates of his/her faith, nor will today’s decision have any effect on the role and teaching ability of a priest or deacon in the pulpit, the classroom, the barracks or in the office.”

Douglas Laycock, a top constitutional scholar at the University of Virginia's law school, noted that the DOMA ruling did not address religious-freedom concerns, but he acknowledged that military chaplains could confront mounting pressure to accommodate same-sex couples.

“The question is to what extent the chaplains retain their free-exercise rights or act as military officers,” Laycock told the Register.

When the Supreme Court took up the DOMA case, United States v. Windsor, it was asked to address several issues, most prominently, “whether Section 3 of the Defense of Marriage Act (DOMA) violates the Fifth Amendment’s guarantee of equal protection of the laws as applied to persons of the same sex who are legally married under the laws of their state.”

The court also addressed two other related issues: whether the Obama administration’s decision not to defend the federal law deprived “this court of jurisdiction to decide this case” and “whether the Bipartisan Legal Advisory Group of the U.S. House of Representatives,” which took up the defense of DOMA in the courts, had “standing in this case.”

The high court determined that Congress did have standing to defend DOMA. However, when the issue of standing arose in the Proposition 8 case, the court found that the private citizens group that took up the defense of the state voter initiative after state officials refused to do so did not have standing.

Thus, the justices’ ruling in the California case set aside the more central question of whether “the Equal Protection Clause of the 14th Amendment prohibits the state of California from defining marriage as the union of a man and a woman.”

Prop. 8 Implications

Douglas Laycock outlined the implications of the Proposition 8 ruling for California and future litigation on the issue.

“The Supreme Court told the court of appeals to dismiss the appeal. That appears to leave the district-court judgment in effect,” said Laycock.

“That judgment is not binding on other courts or judges. But it is binding on the parties to the case, and it ordered state officials to stop enforcing Proposition 8 anywhere in California.”

Laycock noted that state officials “have no desire to challenge that. Individual county clerks could challenge it, and there could be further litigation about whether the district court could bind all the county clerks who were not parties to the litigation. But in much of California, county clerks may be happy to go along.”

Both Supreme Court rulings were claimed as a victory for advocates of “marriage equality,” but Notre Dame’s Garnett pointed out that the decisions presented “two different visions of the constitutional task of unelected federal judges.”

“In the case concerning California’s Proposition 8,” said Garnett, “the chief justice reminded readers that the court’s job is not to seek out and answer interesting questions or to put to rest ongoing political debates.”

In contrast, the DOMA majority opinion “took the occasion to rule on the law’s constitutionality and to strike it down.”

Justice Scalia's dissenting opinion on DOMA underscored the justices' opposing views about the role of the court.

"We have no power to decide this case. And even if we did, we have no power under the Constitution to invalidate this democratically adopted legislation," Scalia stated. "The Court’s errors on both points spring forth from the same diseased root: an exalted conception of the role of this institution in America.”

Moral Context

That said, the absence of any broader moral context for anchoring the nation’s marriage laws was also striking, even if expected.

In March, after the justices heard the oral arguments on the marriage cases, Gerard Bradley of the University of Notre Dame Law School said the exchanges “reveal a court which is indeed standing over a ‘cliff’ looking into ‘uncharted waters.’”

During the March oral arguments, the justices raised questions about the findings of social research on the impact of same-sex “marriage” on family stability and children, but Bradley concluded that the “missing ingredient is not ... a body of social-science data. It is a strategically central moral judgment which the court is obviously not going to undertake.”

Now, in the wake of the June 26 decision on DOMA, some will contend that Justice Kennedy did stake out the moral high ground when he wrote a majority opinion that chastised Congress for passing a law that expressed "animus" toward a particular social group. Going forward, his judgment will lead some citizens to embrace a new framework for marital relationships and family formation.

But other Americans will resist the siren song of “marriage equality."

“Citizens in all 50 states remain free to discuss and debate laws on marriage,” Ryan Anderson, co-author of What Is Marriage? Man and Woman: a Defense, told the Register. “They should continue to do this, and they should continue to tell the truth that marriage matters for children, society and limited government.”

States that had DOMA/Prop 8-type laws on the books and on hold, are now being overturned or removed; this was bound to happen. At least, states have no choice but to give SSC the same benefits as their opposite counterparts have been receiving for some time.

Posted by Tankie on Wednesday, Jul, 3, 2013 10:28 AM (EDT):

Separation of Church & State. Religious organizations should not try to use their money and influence to ram the superstitious minority beliefs down everyone’s throats. USA is not a theocracy or theocratic republic. Freedom of religion includes freedom from religion and is not restricted to any one religion or god. Anything else is unjust.

Posted by Robert A.Rowland on Saturday, Jun, 29, 2013 10:34 PM (EDT):

Scalia is right. SCOTUS has lost its sense of propriety and morality,no longer trusts the God of our founders and has destroyed the Declaration of Independence. Must we have another revolution to regain what we have lost from the last one. Roe v Wade was strike one. The decision on marriage is strike two. Our nation is being sold out by the administrative and judicial branches of the federal government. Socialism is the historic bane of civilization. May God have mercy on our depraved nation before His justice must ultimately prevail.

As prophesied in the Holy Bible, homosexuals, lesbians, abortionists, nature-worshipers and animal rights advocates are human beings who devalue human life by behaving “as a dog (that) returns to his vomit and as a sow (that) returns to the mud after having been washed clean.” In addition, Christians are told by God and Christ Jesus, our Lord and Savior, “to do the truth in love.” The kind of spineless and harmful “love” brandished by the secular media and State universities, is only a feat of evil emotional manipulation aimed at browbeating Christians into “letting down their guard” in order to be “approved” by the godless instigators that are provoking the wrath of God against our nation. God, our Heavenly Father, admonishes us as a father disciplines the son whom he loves. “Love,” as exploited by godless humanists, has become a “morality-free zone” under the umbrella of which, every corrupt sexual practice under the heavens is welcome. But love, as God commands, empowers the self for rational self-control and sound-minded self-discipline geared to guard against “letting loose” the irrational, destructive, and deadly passions that can be conjured by the human imagination, e.g., anal sex or sex with animals. True love, as God commands, does not harbor filth, immorality, corruption, lasciviousness, recklessness, and irresponsibility. For, love, without spiritual self-control and moral self-discipline is not sound-minded; rather, in that context of corruption, “love” is nothing but an irrational mask for camouflaging religious legalism while perpetrating the vilest abominations that are already condemned by God’s Holy righteous judgment and pure Spirit. Christians have let the ungodly sodomites and their advocates control the content and course of public conversation and civil debate regarding so-called “same sex marriage.” Christians and godly believers must keep watch in order to prevent the godless humanists from hijacking our nation universe of discourse. Marriage is between one Man and one Woman whose God-created sexual organs and reproductive endowments complement each other for intimate sexual union and uncorrupted love. But, sodomy, or anal engagements for sexual stimulation, is a vile, filthy, disease-causing, destructive, and deadly abomination that can never be right, and that must always deserve condemnation from both God and Humankind. Christians and all godly believers have to “stop tip-toeing through the tulips.” God bless you all with spiritual discernment that impels you “to do the truth” as Christ, “the way, the truth and the life” commands.

Posted by Linda from Chicago on Friday, Jun, 28, 2013 10:34 AM (EDT):

The Truth cannot be compromised. Marriage is between a man and a woman to create new life. Two of the same sex cannot do that. They are disobedient to God’s law through their free will choices, bottom line. I have known gays for most of my life. I have been in the bars with them, I have listened to them when they cry about their lonliness regarding their one night afairs and the shame, guilt, and self-loathing for thier actions. Their affairs do not bear good fruit, therefore it is not from God. They have convinced themselves in grave error that if they are managamous it will justify their existence, but they are wrong. And hypocritcal as well, the Doma had to do with property and possessions, not love. I love my gay brothers and sisters, but they are duped by the evil one as we all are in our lives. But if we truly keep God in our lives through Mary and frequent reception of the Eucharist we can receive grace to get through all of this. Pray, pray for your gay brothers and sisters that they may see receive the Spirit of Truth. Pray also for heterosexuals who have one night affairs, live together without the sacrament of marriage, have babies out of wedlock and the worse of them all abortion.

Posted by lroy on Friday, Jun, 28, 2013 9:23 AM (EDT):

Since the vote was 5-4 then I will summarize that the four who voted against are pro-life and the five are pro-abortion. Anyone see the connection?

If the laws are to be changed, then the Supreme Court ratio needs to be changed. I can see no other way around it right now.

Posted by Stephanie on Thursday, Jun, 27, 2013 5:55 PM (EDT):

So, if the governor and the attorney general refuse to to their jobs and represent the voters, what is the voters’ recourse? That is an issue that needs to be resolved and quickly.

Posted by Linda Dianda on Thursday, Jun, 27, 2013 3:17 PM (EDT):

Very Sad, Very Sad indeed. Gay marriage trivializes the sacredness of marriage. I am shocked, but then again not really because the heterosexual community trivialized marriage too, with divorce. 50% of heterosexual marriage ends in divorce. Maybe we didn’t set a good example and this is the bad fruit it bears. God have Mercy on Us!

Posted by gerard on Thursday, Jun, 27, 2013 1:39 PM (EDT):

Amazing to read so much hatred on a Catholic message board. Who among you is ready to cast stones? Everyone, it would seem.

Posted by mary on Thursday, Jun, 27, 2013 12:30 PM (EDT):

The supreme court really is GOD, we are in the battle between good and evil. I pray for those poor misguided souls who think that this world is the final place, they are setting themselves up to lose their souls if they don’t want GOD in their lives. I think that the catholic church need to go back to saying the three Hail Mary’s after mass for people to get back to putting GOD in their lives just like we did years ago for the conversion of Russia, also the St. Michael prayer. Keep up the good fight. GOD BLESS

Posted by george t. natale on Thursday, Jun, 27, 2013 11:48 AM (EDT):

listen to the lyrics in john lennon’s song, “Imagine”. Its coming true right now in our time. This, I suppose, is what they call new world order Marriage debate is just part of all this. GOD help us!!.

Posted by Turley on Thursday, Jun, 27, 2013 9:36 AM (EDT):

The court and the homosexual movement continues to push for a definition of a perverted life choice as a legitimate Civil Right. To keep this comment to be brief, it does NOT quantify as a defendable right under Title VII of Code. That code defines discrimination on definable physical characteristics: Your skin color, your sex, your physical appearance, and or disability if displayed, wheel chair etc…The homosexuals have long believed they “were born that way.” Nothing can be further from the truth. Biological studies cannot find a “homosexual” gene. Biologically, a woman is an XX and a man an XY. There have been anomalies in the DNA, but nothing that would determine a sexual preference. A bar brawl in New York City in 1969 does NOT determine a Civil Right. What would my hero Dr. King say? As a conservative, it’s hard to determine, but he certainly wasn’t bound by chaotic theology or thought.

Posted by FarewellAmerica on Thursday, Jun, 27, 2013 6:48 AM (EDT):

...and so heretics and apostates continued to dump gasoline on the flames as the inferno engulfed the spiritual, moral, and economic foundation of the USA…

And to their homeland said LUKEWARM Catholics: “O AMERICA, IF TO SMOKE YOU TURN I SHALL NOT CEASE TO FIDDLE WHILE YOU BURN.”

Posted by cosmas ikeche on Thursday, Jun, 27, 2013 1:39 AM (EDT):

I think the gay right proponents should draft fresh nomenclature and definition of their relationship rather than impose it on marriage which definition has since been established as union between man and woman to the exclusion of all others.

Posted by John on Thursday, Jun, 27, 2013 1:07 AM (EDT):

Finally, it has come to a close and now the people of this country will move on with their lives, knowing full well that having SSM is marriage under federal law and now let the matter rest. Although the church will not at any time soon hold SSM ceremonies in church, at least the bishops, cardinals, priests, and other religious can focus their attentions on other important matters-like helping this country create jobs!

Posted by Greg on Wednesday, Jun, 26, 2013 11:32 PM (EDT):

The Constitution is a man made set of rules. It holds no Truth. It is normal, I would say obviously normal, that it is incomplete and in many places inconsistent and conflicting. Supreme Court made a decision based on the Constitution, not the Bible. No country can stand intellectual analysis of its own Constitution.

Posted by Donald Link on Wednesday, Jun, 26, 2013 11:04 PM (EDT):

So, the supreme court has decided to officially endorse institutional sodomy and extend marital benefits to those whose brains are wired in reverse. In view of the court’s track record over the past fify years in protecting and creating rights for the immoral over the rights of the just, should this be a surprise? And to the 54% of “catholics” who voted for this president, you were truely whistling past the graveyard of what will be the demise of civilized behavior as we have known it.

Posted by Michael Marshall on Wednesday, Jun, 26, 2013 8:48 PM (EDT):

Neither decision is really a surprise despite all of the groups that opposed the misruling that came out of the High court. Truly Traditional Ideas and action are in the minority in this country. I really wish the Justices had truly put the head together and read the bible on this but that is too much to ask from them because they simply agree with Europe and the rest of this world on this issue/ IT was all about the money. Not love, raising a family, or even marriage. Follow the money trail.

Posted by Helen Satmary on Wednesday, Jun, 26, 2013 8:44 PM (EDT):

This is also an attack on Christianity! Satan must be smiling tonight!!! If you are in any of the businesses that deal with marriages and you faith tells you that a marriage between two women or two men is against Gods’ law you will be put out of business or arrested if you do not want to furnish them with anything to do with their marriage or you offend God by complying. Since Obama became president (small p intended) we have been coerced into what is evil is good and what is good is evil. I pray God this will stop but it is going to take many heartfelt prayers to do any good as I believe God is so outraged and offended by this Country by now. Where are any of our Representatives to stop this craziness. It is not the place of the Supreme Court to even rule on this abomination!

Posted by Michael Susce on Wednesday, Jun, 26, 2013 7:31 PM (EDT):

“Moral Context Missing”!!! Huh?

In your own quote of Justice Scalia, he clearly states that a moral judgment HAS been made! He states, “how superior the majority’s moral judgment in favor of same-sex marriage is to the Congress’ hateful moral judgment against it”!

And then Mr. Bradley goes on to say that a “the court is not obviously going to take” on such moral judgments!? It is a sad day when I am highly skeptical (and justified) of anything that comes out of Notre Dame these days. As to the belief that people in all fifty states will have a right to debate or we have a right to resist: at what cost? Justice Scalia again rightly dismisses any such pie in the sky belief that somehow, the Supreme Court will respect the states right to the “hateful moral judgment against it [homosexual marriage]”. To a growing majority, we are as deserving of reprobation as the white racist’s of an earlier period and the Supreme Court of the Land has implicitly codified the right for others to despise us.
God Bless
Please, I have much respect for your organization but to structure your article in such a way as to end with watering down of the fundamental tragic reality (that will be broadcast throughout the world no less) of this day (and the inconsistencies therein) does a disservice to you and your readers.

Posted by Doorman on Wednesday, Jun, 26, 2013 6:58 PM (EDT):

The only silver lining when evil prevails, is that it makes itself seen. All of those semi-closeted homosexuals in The Church and in the clergy, will now begin to make themselves seen, and therefore the exit from the Church can begin. Inside the church, hiding like double agents, they were a festering sore to the teachings of the Church. Like Judas awaiting his chance to betray the Lord. But once his betrayal was complete, it became obvious to all what he was up to all along! The homosexual betrayers of Christ and his Church similarly will be shown to be what they are, not Catholics, but Protest-ants trying to subvert the Church.

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